Employers have an obligation to investigate when they receive a harassment or discrimination complaint. But not every situation will require a full-blown investigation, according to Lai-King Hum, founder of Hum Law Firm.
Instead, employers need to ensure the response is appropriate and tailored to the circumstances of each complaint, she said.
Investigations are necessary when there are allegations of serious issues, like sexual harassment, racial discrimination or bullying — especially when it involves a power imbalance between managers and employers. But, in other cases, mediation may be a more appropriate and timelier route.
For example, Hum discussed a recent case involving two co-workers who made mutual complaints against each other involving harassment.
“I was called on by the employer, who said, ‘I need an investigation done,’” she said. After going through the complaints and reviewing the company’s relevant HR policies, it “didn’t quite trigger the threshold for when an investigation is required.”
In that case, the two workers were former colleagues and one of them had been promoted. Tension arose as the newly promoted worker started telling the colleague what to do, she said.
“What I counseled was let’s resolve this. Let’s do this as a mediation instead,” said Hum. “Both parties have expressed a desire to resolve, so let’s do that. And it was successful.”
Who should conduct the investigation?
While HR can conduct the investigation, it doesn’t necessarily mean it should, said Hum.
“HR may have handled many internal investigations over simple harassment complaints, but they may never have handled any that involve racial discrimination with allegations of micro-aggressions over a long period of time,” she said. “That may take someone with a bit more expertise, someone with experience with bias and cultural competence.”
A good litmus test is, if HR or the business owner is questioning whether they are competent to conduct the investigation, then they should seek external help, said Hum.
Consequences of a botched investigation
The most obvious consequence of mishandling an investigation is financial, she said, with courts and tribunals regularly handing down penalties. But there are also severe reputational risks as well.
“We all know that an independent investigator conducted an inquiry at CBC and concluded that management had mishandled complaints about Jian Ghomeshi and failed to provide employees with a safe workplace,” said Hum. “You don’t want to be in that situation.”
While one of the concerns from employers is the cost associated with hiring an external investigator, it’s always worth having a conversation with an expert.
“It’s always better to make an inquiry. Is this the type of situation that requires an investigation? And if it is required, then do take the steps,” said Hum. “If there are cost concerns, then there are measures that can be taken to try and trim the cost but still have an investigation that’s appropriate in the circumstances.”
Working with an investigator
Hum said it’s key for employers to be comfortable with the person they are hiring to investigate a workplace complaint — including the credentials they bring to the table. Next, the framework needs to be established.
“What is the scope of the investigation? What specific allegations are being investigated? What’s the approximate timeline?” she said.
A fact-based investigation report focuses on the allegations, presenting details gathered from the complainant, respondent, and witnesses — along with conclusions based on factual findings, she said.
If there are no witnesses, and it becomes a matter of credibility between the complainant and respondent, the investigator may make a credibility finding, said Hum.
“Not every investigator has the same process, but I put to everyone I interview a written summary of their evidence and have them confirm it back to me in writing,” she said.
The report may also include advice or recommendations to the employer.
“That usually happens if you are engaging a lawyer as an investigator,” she said. “There are external HR people who will conduct investigations, but they will not make legal recommendations.”
It’s critical for those recommendations to be included in a separate report to protect confidentiality in case of litigation, she said.
“If there is litigation, the entire factual findings report might be disclosed to the other party — but the separate report with the legal recommendations is protected by privilege,” she said.
When the investigation is concluded, the employer can expect to receive a report with findings and conclusions. The complainant and respondent usually receive a summary of the conclusions and a report on any corrective action taken, said Hum.